peace of Gloucester county. That the justice had tried the cause and rendered judgment for the plaintiff below, Leonard; that the plaintiff in certiorari appealed from the judgment of the justice, to the Common Pleas of Gloucester. That the Common Pleas reversed the judgment of the justice, on which the plaintiff below brought an action for the same injury before another justice, and obtained judgment again. To reverse this last judgment this certiorari is brought. BY THE COURT.-The proceeding below is founded on a mistaken apprehension of the law. The Common Pleas, in cases of appeal, do not act as a court of error, but re-try the case on its merits. This cause has therefore been determined on its merits, by a court of competent jurisdiction; and as long as the judgment of the Common Pleas is in force, no new action for the same cause can be maintained in any other court. This judgment must therefore be Reversed. WHITE vs. CRAMMER. ON CERTIORARI. On the return day of the summons, in the cause below, the defendant did not appear; whereupon the justice, without examining any witness, but on [*] the plaintiff's producing an execution, which he contended he had paid at the instance of the defendant, and also the production of a paper purporting to be an order, which the plaintiff contended the defendant had become answerable to pay, the justice rendered judgment, as he calls it, by default. BY THE COURT.-This judgment cannot be supported. There must be a trial, and that by legal evidence, to justify a judgment. Judgment reversed. MAGEE vs. BUCKBEE. ON CERTIORARI. Copy of account must set out the items. THE Copy of account, filed with the justice below, contained several charges for sundries, without setting out the particular items. For this cause, in conformity to former decisions, the Court Reversed the judgment. CRAMMER v8. MATHIS. ON CERTIORARI. THE cause below was referred, and it not appearing by the record that the referees were sworn, the judgment was Reversed. [*] HERITAGE v8. DANIELS, Assignce of Hewes. ON CERTIORARI. Filing note as the state of demand, illegal. DANIELS was the plaintiff below, and Heritage the defendant. On the return day of the summons, the justice made the following entry on his record. Plaintiff appeared, proved and filed a note of hand, drawn in favor of Daniel Hewes, by the above defendant, for forty-five dollars, dated 17th June, 1809. Defendant not appearing, judgment is entered in favor of the plaintiff; (after examining the noto filed) for forty-five dollars and twenty-five cents debt, and fifty-three cents costs of suit, in the absence of the defendant. It also appeared by the return of the justice, that there was an assignment indorsed on the note, from Hewes to Daniels. The objection raised to the proceedings below; was that, 1st. No state of demand was filed, and 2d. There was a trial and judgment without evidence. BY THE COURT.-Both of these objections have been repeatedly adjudged sufficient ground for the reversal of the judgment of the justice. Filing a note or other evidence of a ground of action, is not filing a state of demand; nor had the justice legal evidence of the execution of the note, nor of the assignment. Judgment reversed, [*] LITTLE and LITTLE vs. FLEMING and FLEMING. ON CERTIORARI. Issuing execution on report of referees without judgment, void. THE cause below had been referred; and on the coming in of the report of referees, the justice entered the same in his docket, and without entering judgment, issued execution. For this error, the proceedings below were ordered to be Set aside, and declared null and void. EXECUTORS of WOODRUFF vs. WOODRUFF, THE action below was brought to recover a legacy bcqueathed in the will of Isaac Woodruff, the testator of the defendants below. The only point of objection to the pro ceeding below, taken notice of by the judges in giving their opinion, was whether the court for the trial of small causes, have jurisdiction in case of legacies, and to what amount. The plaintiff below, demanded $100, and recovered judgment for the same sum. KIKPATRICK, C. J.-There are six reasons assigned for the reversal of this judgment, but no one of them verified as to matter of fact, either by the record or otherwise. A general question, however, has been raised upon the whole record, and relied upon by the plaintiff in certiorari. It is, whether an action for legacy will lie in a justice's court. Matter of legacy originally, was not of common law [*] jurisdiction. It belonged to the Ecclesiastical Court, and I believe, does so still in England, except under particular circumstances. No such court existing in this country, it became necessary to transfer it to some other judicatory. This, no doubt, must have been done very soon after the settlement of the province, either directly or by construction and practice. The first act I have been able to find on the subject, is 4 Geo. 2, 49; passed in 1730. This act expressly gives an action of debt for a legacy in the common law courts, and particularly before a justice of the peace, if the sum be under forty shillings, this being the largest sum then cognizable in that court. The act now in force, by which the act of 1730 is repealed, was passed in 1774, and also gives an action of debt in the Supreme Court, or any other court of record, if the legacy amounts to £15, and in any court where the same may be cognizable, if under that sum. It is to be observed, that between the passing of the act of 1730, and that of 1774, the justice's jurisdiction had been raised from forty shillings to £6. When the act then gives an action of debt for a legacy in any court where the same may be cognizable, if under the sum of £15, it is manifest that the words can only be satisfied by applying them to the courts of Common Pleas, for all legacies under £15, and above £6, and to the justice's courts for all under that sum. The policy of the act is to convert legacies into debt, for this purpose, to give a common law remedy for the recovery of them, and to subject them to the cognizance of the common law courts, like other debts. The distribution of them which the act makes to the different courts, is precisely the same as in other actions. Our twelve pound, and sixty dollar, and hundred dollar acts then, finding the justices in possession of [*] this ju t risdiction, as to legacies, have merely raised the sum without altering the subject matter. From this view of the subject, I can have no doubt but that the action well lies before a justice; and therefore, I think, so far as it depends upon this question, that the judgment must be affirmed. I should have been glad to see the will, but it is not handed up, nor I believe, made the ground of any objection. ROSSELL J.-Was of the same opinion. PENNINGTON, J.-The action below was brought against the defendants below, as executors, for a legacy; one objection raised against the proceedings below, is, that the justice had not jurisdiction of the action. Notwithstanding the act of Assembly declares courts for the trial of small causes, courts of record, yet so far as it respects the jurisdiction of these courts, they are to be considered inferior courts, of special jurisdiction, and derive their authority from positive law. The cases made cognizable by the act of Assembly in these courts, are, every suit of a civil nature at law, where the debt, balance, or matter in dispute, does not exceed one hundred dollars, &c. with the exception of trespass, assaults, &c., and cases where the title of land may, or shall come in question. As actions for legacies were not at the common law, maintainable in courts of the common law, but in the Ecclesiastical Courts, and Courts of Chancery; it may be very well questioned, whether by this act alone, justice's courts have jurisdiction of the cases of legacies. My attention has therefore been drawn to the act of Assembly on the subject of legacies, passed in 1774, Pat. 36. This act, after reciting that the laws of the Province, relating to the recovery of legacies, are defective, enacts, that legacies may be sued for by action of debt, case, or detinue, if they amount to fifteen pounds or upwards, in the Supreme Court of this [*] Province, or any other court of record; and if under fifteen pounds, in any court where the same is cognizable: and then proceeds to make provision for the appointment of auditors, in case of the plea of the want of assets: also, for refunding bonds, and awarding costs according to equity. The words "in any court where the same is cognizable," gives rise to some difficulties in my mind. It cannot be supposed that the Legislature intended to give jurisdiction to the Supreme Court, of all cases of legacies of fifteen pounds and upwards, and leave to the Courts of Chancery, and Ecclesiastical Courts (or what was the same thing, the Ordinary) sums under fifteen pounds. If this act had been passed since the revolution, and was a new one on the sub ject, I should have been at once inclined to think, that the true construction of it would be, that legacies of fifteen pounds and upwards, were cognizable in the Supreme Court, and Courts of Common Pleas; and under fifteen pounds, in any court having authority to try civil causes at law, according to the limits of their several jurisdictions as to the sum, in which would be included justice's courts. I find by looking into Nevill's edition of the laws, vol. 1, page 192, that this is no new law, but the same act with all its provisions, was passed in 1730, for a limited time, and afterwards made perpetual by a subsequent act, 1 Nevill, 252. There is however, this difference as to the jurisdiction of the courts. The act of 17 30, which I incline to think was the first law on the subject, after we became a Colony, and which recites the same mischief to be remedied as the act of 1774, authorizes an action of debt or detinue for a legacy “if it amount to the value of twenty pounds or upwards, in the Supreme Courts of this Province, or any other courts of record, and if upwards of forty shillings, and under twenty pounds, in any of the Courts of Common Pleas in any of the counties of this Province; and if of the value of forty shillings or under, then in such case, before any justice of the [*] peace, of any of the counties in this province." It is true, that this act has been repealed by that of 1774, and is only resorted to by me, for the purpose of explaining the ambiguous expressions in the last act; and it is to be regretted that it affords so little light on the subject. It however answers one argument of the counsel for the plaintiff in certiorari:-That the Legislature could not have intended to give justice's courts jurisdiction of legacies, as they have authorized courts having such jurisdiction, in the case of a plea of want of assets, to appoint auditors to settle the accounts of the executors, that it cannot be believed they ever meant to confer on justice's courts, this important and intricate duty, which they could not be supposed to be calculated to perform with correctness, or convenience. But the act of 1730, expressly gives justice's courts jurisdiction of legacies, to the extent of their jurisdiction at the time of passing the act, which act contained precisely the same provision respecting the appointment of auditors, as the act of 1774. But what is meant by the words or any other court of record, coupled with that of the Supreme Court, is rendered more obscure and ambiguous by a recurrence to the act of 1730. In this respect, the two acts make use of precisely the same words, to wit: "in the Supreme Court of this Province, or other court of record ;" but immediately following these words, in the act of 1730, is an express provision, giving any |